A
Scottish court could yet hear another appeal against the conviction of the
Lockerbie bomber, the country’s Justice Secretary disclosed yesterday.
Kenny MacAskill, in a statement at Holyrood in which he vehemently
rejected claims that he had raised the prospect of doing a deal with Abdul
Baset Ali al-Megrahi, said that such an appeal could be made before or after
al-Megrahi’s death and could come from the Libyan himself, his family or
campaigners who claim he is innocent.
An application would have to be made through the Scottish Criminal
Cases Review Commission (SCCRC) who would refer it to the High Court.
It would then be up to the court to accept or refuse the
application for appeal. The SCCRC has already decided that there are grounds
for a further appeal, but it has not yet published its reasons for that
finding.
If al-Megrahi dies before an appeal is heard, it could be taken
forward under section 303A(3) of the Criminal Procedure (Scotland) 1995 Act,
which would enable his family to apply to the court to have the right of appeal
transferred to them. (…)
Mr
MacAskill also said the Parliament would want to know whether there was a
mechanism for an appeal still to be heard, even posthumously. “I can confirm
that there is. It would involve an application being made for a further
reference by the SCCRC, the Commission deciding to make a reference and for the
High Court to accept such a reference,” he said.
“These, of course, are not matters for me as Justice Secretary to
decide upon. It is not for me to either seek or oppose a potential appeal,
posthumous or otherwise.” That, he said, was a matter for others, but he would
have “every confidence” in the Scottish criminal justice system if there was to
be another appeal. “That is a matter I would be entirely comfortable with.”
Legislation
going through the Scottish Parliament later this year will allow the SCCRC to
publish its statement of reasons for finding grounds for appeal. However, the
SCCRC would still have to obtain clearance from the Ministry of Justice in
London because of the potential for publication to breach data protection laws.
Mr MacAskill said that he had written to Ken Clarke, the Justice
Secretary in the Westminster coalition, “urging him to make a decision for an
exception to be made to the normal statutory data protection rules for this
unique case”.
It is understood that Mr Clarke’s department is still receiving
legal advice on whether the full SCCRC report can be published or whether parts
of it may have to be redacted to comply with data protection legislation.
[The
possibility of a further appeal after Mr Megrahi’s death is an issue that has
been dealt with in this blog, for example here.]
Is there really a possibility of another appeal while Megrahi is still alive? I'm not convinced his death is so imminent now, and we could have to wait another few years for a posthumous appeal.
ReplyDeleteI have always thought the Libyan government under Gaddafi was very reluctant to see any more Lockerbie truth come out, and may even have pressurised Megrahi to drop his second appeal. Recent developments strengthen that suspicion. However, there's a different regime there now, and perhaps less reluctance to see the whole affair raked over again.
There is no legal bar on another SCCRC application while Megrahi is still alive. But my view is that the SCCRC would reject any such application (as not being in the interests of justice) unless it came from the convicted person himself while he remains in the land of the living. And Megrahi has (understandably) said he does not intend to apply again. Even if the SCCRC did allow a third-party application, I'm sure the High Court would refuse to hear the appeal (on this same ground) under the new powers conferred on it by the Cadder emergency legislation. Realistically, in my view, the only chance of another appeal is after Megrahi's death.
ReplyDeleteI suspect that the new regime would not be supportive of Megrahi's family if they tried to launch a new appeal after his death (and they certainly wouldn't fund it in the way the Gaddafi regime did). Their interest seems to be in saying Lockerbie was a Gaddafi operation though, of course, they haven't come up with any of the promised evidence.